Public Risk January/February/March 2023

Every community has a story.

We can help protect yours.

Travelers has solutions designed specifically for public entities. Our public entity experts work with local communities to design insurance programs tailored to their unique challenges – from public safety to catastrophic weather to online breaches of sensitive data. We are dedicated to helping communities protect themselves from the unexpected, so that they can continue to tell their stories. To learn more, contact your independent agent or broker.

The Public Risk Management Association promotes effective risk management in the public interest as an essential component of public administration.

CONTENTS

PRESIDENT Scott J. Kramer, MBA, ARM County Administrator

Autauga County Commission

Prattville, AL

PAST PRESIDENT

Melissa R. Steger, MPA, CRM

Asst. Dir., WCI & Unemployment Ins. University of Texas System

Austin, TX

PRESIDENT-ELECT

Laurie T. Olson

Sr. Risk Management Consultant City/County Insurance Services

Salem, OR

DIRECTORS

Sean Barham, MBA, ARM

Executive Director of Human Resources

Las Cruces Public Schools

Las Cruces, NM

Dana S. Henderson, CWCP

Risk Manager Town of Mount Pleasant

Mount Pleasant, SC

Jennifer Hood

Safety & Risk Director

Navigating the “New Normal” in Workers Comp: Rethinking

By Rebecca Morgan

Esq.

Montgomery County Government

Clarksville, TN

Steve M. LePock, II

Risk Manager

Virginia Beach City Public Schools

Virginia Beach, VA

Adam F. Maxwell, CLRP

Director, Administrative Services City of Westerville

Westerville, OH

Ann-Marie A. Sharpe, ARM, RMPE Director, Risk Management City of Miami Miami, FL

NON-VOTING DIRECTOR

Jennifer Ackerman, CAE

Chief Executive Officer

Public Risk Management Association

Alexandria, VA

EDITOR

Claire Howard 518.360.3285

Claire.Howard@CLHCosmo.com

ADVERTISING

Claire Howard 518.360.3285

Claire.Howard@CLHCosmo.com

Public Risk is published 6 times per year by the Public Risk Management Association, 700 S. Washington St., #218, Alexandria, VA 22314 tel: 703.528.7701 • fax: 703.739.0200

email: info@primacentral.org • Web site: www.primacentral.org

Opinions and ideas expressed are not necessarily representative of the policies of PRIMA.

Subscription rate: $140 per year.

Back issue copies for members available for $7 each ($13 each for non-PRIMA members). All back issues are subject to availability. Apply to the editor for permission to reprint any part of the magazine.

POSTMASTER: Send address changes to PRIMA, 700 S. Washington St., #218, Alexandria, VA 22314.

Copyright 2023 Public Risk Management Association

Register for PRIMA’s APRIL WEBINAR

After Action Reports: What They Are and Why They Are So Important

APRIL 19 | 12:00 PM – 1:00 PM ET

SPEAKER:

Jason Stoddard, Director of School Safety and Security, Charles County (MD) Public Schools

After Action Reports (AAR) are defined as “a detailed critical summary or analysis of a past event, created to re-assess decisions and consider possible alternatives for future scenarios.” AAR’s are critical learning tools and should be must-reads for stakeholders. Learn how to review and use AAR’s from several critical events to improve your school security.

ATTENDEE TAKEAWAYS:

1. Participants will be able to identify key components of an AAR

2. Participants will be able to review details of an AAR and incorporate lessons learned into their day-to-day

3. Participants will learn to look beyond the words to improve their school safety programs

Appreciation of PRIMA Ambassadors

Iworked 15 years in the private sector before coming into the public sector. I noticed early on that County government was different from my previous experience. The City Risk Manager in my area suggested that I consider becoming a PRIMA member because of the many resources that I could utilize to avoid reinventing the wheel. He also stated the educational conferences were very informative and that I could select the sessions that were relevant to my needs. After I joined PRIMA, all of the information relayed about PRIMA was true. I realized he was a great ambassador for PRIMA.

PRIMA has many ambassadors that tell the story of all the benefits realized as a member. Some of those ambassadors include:

• Sponsors and Corporate Partners – Many of these vendors set up a booth during the annual conference to give members an opportunity to meet with them to share their unique products and services. While many of the sponsors and corporate partners provide revenue to ensure we have great conferences, they also assist public risk managers in doing their job better.

• Volunteers – There are so many behind-thescenes volunteers, many of them seasoned risk managers, who share their experiences and expertise on various committees, task forces or podcasts that shape the direction of this organization.

• PRIMA Staff – Jennifer Ackerman has done an excellent job in leading this organization and her staff. Her leadership focuses on continually adjusting in our ever-changing

environment and membership to ensure that PRIMA is truly the go-to resource for public risk managers.

• The Board of Directors – This Board is a special group of people with unique passions in making PRIMA better. We have worked together with great cohesion to continue the work of PRIMA staff and Board members before us.

• PRIMA Members – Each of you play an important role in promoting PRIMA. As you realize the valuable benefits you receive from this organization, make sure you share them with others.

Thank you to all the ambassadors that make PRIMA the largest and best association dedicated solely to the practice of risk management in the public sector!

Sincerely,

Scott J. Kramer, MBA, ARM PRIMA President 2022–2023 County Administrator Autauga County Commission Prattville, AL

Each of you play an important role in promoting PRIMA. As you realize the valuable benefits you receive from this organization, make sure you share them with others.

“ “

NEWS Briefs

ARTIFICIAL INTELLIGENCE IS INCREASINGLY BEING USED TO MAKE WORKPLACE DECISIONS—BUT HUMAN INTELLIGENCE REMAINS VITAL

Gary D. Friedman | Fortune Magazine | March 13, 2023

companies have increasingly prioritized diversity, equity, and inclusion initiatives. After the killing of George Floyd and subsequent protests around the country, businesses pledged $200 billion to increase efforts toward racial justice. Surveys show businesses are committed to increasing DEI budgets, staffing, and metrics, and investing more in employee resource and affinity groups. Pay equity audits are on the rise, along with a host of new laws in New York, California, and elsewhere mandating transparency on employee compensation.

NEW YORK LAWMAKERS CONSIDER SEXUAL ASSAULT COMP BILL

Louise Esola | Business Insurance | March 14, 2023

New York lawmakers are considering legislation that would provide parameters for workers compensation claims and lawsuits stemming from workplace sexual assault.

S.B. 5698, introduced on Monday and sent to the Labor Committee, states that injuries from a sexual offense would be compensable under workers comp and would allow “such employee to pursue any other remedies available at law or in equity.”

Companies are increasingly turning to artificial intelligence tools and analytics to reduce cost, enhance efficiency, raise performance, and minimize bias in hiring and other job-related decisions. The results have been promising–but concerns over fairness and objectivity persist.

Large employers are already using some form of artificial intelligence in employment decision-making. A February 2022 survey from the Society of Human Resources Management found that 79% of employers use A.I. and/or automation for recruitment and hiring.

The move by employers to harness A.I. and related data analytics in an effort to reduce unconscious bias in employment decisionmaking is no surprise. In the past few years,

A.I. has been proven to be helpful in a variety of areas related to hiring more diversely, including anonymizing resumes and interviewees, performing structured interviews, and using neuroscience games to identify traits, skills, and behaviors. Some companies conduct video interviews of applicants and use A.I. to analyze factors found within them, including facial expressions, eye contact, and word choice. This use of A.I. can help avoid decisions that treat similarly situated applicants and employees differently based on entrenched or unconscious bias, or the whims of individual decision-makers.

Read More: https://fortune.com/2023/03/13/artificialintelligence-make-workplace-decisions-humanintelligence-remains-vital-careers-techgary-friedman/

The bill also “clarifies that workers compensation should be exclusive remedy except when the employee suffers personal injury as a result of a sexual offense committed by a co-worker.”

Texas lawmakers are also considering a bill that would permit lawsuits following sexual assault under certain conditions.

Read More:

https://www.businessinsurance.com/ article/20230314/NEWS08/912356149/ New-York-lawmakers-consider-sexualassault-workers-compensation-bill-

HOW DOES THE COMMERCIAL TRAVELER RULE AFFECT WORKERS’ COMPENSATION?

Bernise Carolino | Human Resources Director | March 8, 2023

Under the commercial traveler rule, the court would consider a commercial traveler to be acting within the course of his employment during the entire period of his travel upon their employer’s business, a recent court ruling said.

3 Stonedeggs, Inc. – the defendant in the case of Nanez vs. 3 Stonedeggs, Inc.; Technology Insurance Company, adjusted by Amtrust North America – was in the business of preparing and serving meals to firefighters and forestry workers at remote locations.

The defendant employed the applicant as a caterer or food assembler or kitchen worker. It authorized the applicant to drive his own car from the Brownsville camp to his residence, then to Happy Camp, where the defendant would serve meals for a three-to-sixmonth period.

The applicant claimed workers’ compensation for injuries arising out of and in the course

of employment (AOE/COE) in the form of a traumatic brain injury, fractured femur, and bruised lung due to a motor vehicle accident.

The workers’ compensation administrative law judge denied the applicant’s claim. The judge found that the applicant did not sustain injury AOE/COE, violated company policy when he left the worksite without permission, and materially deviated and completely departed from his employment at the time of injury.

The applicant asked for reconsideration. He argued that the commercial traveler rule applied to his accident because the evidence showed that he was doing an activity reasonably expected to be incident to his employment at the time of his injury.

Read More:

https://www.hcamag.com/us/specialization/ employment-law/how-does-the-commercial-traveler-rule-affect-workers-compensation/438779

FROM UNDERGRADUATE TO UNDERWRITER: FOUR EXPERTS SHARE THEIR STRATEGIES FOR WIDENING THE RISK AND INSURANCE TALENT PIPELINE

Raquel Moreno | Risk & Insurance | March 2, 2023

Each year brings news of risk management and insurance programs launching at colleges and universities of every tier. But to get students from classrooms to careers in risk and insurance, faculty, recruiters and employers have their work cut out for them.

Ask most people working in risk management and insurance (RMI) how they found their way to the industry, and they’ll probably say something to the effect of “I just kind of fell into it.”

Soon, responses to that same question may be very different.

“Maybe 10 years ago, McKinsey did a study looking at how many risk management and insurance programs are out there and how much talent the industry needs,” said Thomas Berry-Stoelzle, associate professor of finance, Nationwide faculty fellow, and faculty director of the Vaughan Institute, University of Iowa. The findings from that study showed that graduates from collegiate RMI programs back then could only fill perhaps 10% of job openings.

Since then, programs like the one BerryStoelzle directs have been emerging to build a pipeline from academia to the world of risk.

Carriers, brokerage firms and independent recruiters have also been steadily developing an array of internship, training and recruitment programs in that time to find a way to cultivate the future of risk talent.

Read More: https://riskandinsurance.com/fromundergraduate-to-underwriter-five-expertsshare-their-strategies-for-widening-the-riskand-insurance-talent-pipeline/

Get to Know David Parker

THE RECIPIENT OF THE PIONEER EXCELLENCE AWARD

HOW DID YOU END UP IN PUBLIC RISK MANAGEMENT?

Like many risk managers, my path was not planned. I had developed a first-of-its-kind program for San Diego County to help defend highway claims from people who crashed on county roads. I moved to Phoenix when my wife and I married. The Arizona Department of Transportation (ADOT) was experiencing a similar challenge and hired me to develop a similar program. While waiting for the position to be established, a Transportation Board member heard about risk management and wrote the ADOT Director suggesting we should develop a program and help political subdivisions, too. The Director decided it was something good for “the new guy.”

WHAT ARE THE THREE MOST SIGNIFICANT WAYS RISK MANAGEMENT HAS CHANGED SINCE YOU STARTED 35 YEARS AGO?

The early leaders in public risk management had laid the initial groundwork. Sovereign immunity was being eliminated or greatly curtailed. Insurance wasn’t available at any price. Self-insurance and pooling were in their early states. GASB-10’s adoption made management of risk a hot topic. Risk was ‘bad’ and anything ‘risky’ was avoided. Fortunately, we learned to think more strategically, to better support the pursuit and accomplishment of important objectives. We transitioned from being a controlling decision maker to facilitating risk assessment and aligned decision making where everyone is a risk manager. We didn’t stop there. Enterprise Risk Management (ERM) is strongly supported in the higher education community and special districts, and a more strategic approach is beginning to take root in state and local government. The next natural extension is aligning compliance and ethics with ERM.

WHAT ARE THE TOP THREE BENEFITS PRIMA PROVIDES TO YOU?

PRIMA provided most of my early risk management education and support, both

nationally and the chapter level. I may never remember his name, but the keynote speaker at my first PRIMA conference (1997) made a lasting impression and inspired me to adopt this as my life’s work. The Governmental Risk Management Seminars (now PRIMA Institute) were an annual educational experience. Leadership development through PRIMA expanded my horizon and caused me to want to help further the practice, funding a Kennedy School of Government leadership program (an early PERI grant) and providing an international exchange to ALARM in the UK. That prompted my love of public policy and how it can be improved. PRIMA and its chapters also provide an amazing opportunity to develop relationships and support each other.

WHAT PRIMA BENEFITS DO YOU THINK BEST SERVE NEW RISK MANAGERS IN THE FIELD?

Several PRIMA opportunities are especially important for new risk managers. First is a community, available to all members, eager to provide support, whether through responding to a PRIMAtalk question or calling to discuss concepts in more detail. PRIMA Institute is not only an outstanding, structured education program, but it provides the opportunity to spend a week with some leading thought leaders. The Annual Conference provides more of a potpourri of educational and networking opportunities. Webinars and blogs prompt thought before you need to deal with something and the archives are available on-demand. I regularly discuss concepts in more detail with PRIMA members years after webinars went into the archive.

WHAT ARE TWO THINGS PRIMA COULD GET BETTER AT (WHETHER IT’S EDUCATION, REACH-OUT, ETC.)?

I had the opportunity to help develop PRIMA Core Competencies, which remain relevant and timely. I always hope to see more development of the soft leadership skills and those that would round out our members into

organizational management and leadership. It will always be a challenge as many are focused upon improving their technical skills. Arizona PRIMA was instrumental in the antitrust settlement that resulted in PERI, now managed by PRIMA. The Senior Executives in State and Local Government program at Kennedy School made such a huge impact upon my career, and upon me personally, that I would like to see more opportunities of that type. We should also be a recognized source for growing organizational managers and leaders.

IF A NONMEMBER WAS ON THE FENCE ABOUT JOINING PRIMA, WHAT WOULD YOU SAY TO THAT NONMEMBER TO GET THEM TO JOIN?

I think you will find PRIMA to be a great resource of outstanding value across several dimensions. Join PRIMAtalk. Make connections. Call or email members to discuss ideas and gain insight. Peruse archived webinars, blogs, podcasts, and Public Risk articles, all of which come without any cost. Seriously consider PRIMA Institute to begin structured education, followed by the Annual Conference. Take advantage of the ARM study materials and obtain your industry credentials. Learn about ERM through PRIMA/URMIA’s orientation program. Dip your toe in the water, then jump in. Become engaged in learning, growing, and stretching. Make a difference for your organization and your profession!

VIRGINIA SUPREME COURT REVERSES JUDGMENT AGAINST POLICE OFFICER: AFFIRMING HIS DEFENSE OF ANOTHER AS A MATTER OF LAW

BY DANIEL ROYCE, ESQ.

FEW PUBLIC RISK ISSUES ARE AS POIGNANT, TOPICAL, AND CONTROVERSIAL AS LIABILITY FACED BY LAW ENFORCEMENT OFFICERS FOR ACTIONS UNDERTAKEN IN THE LINE OF DUTY.

Our TVs and Social Media feeds are replete with stories of officers accused of bad behavior in the line of duty. Often, these matters result in civil actions where Courts are thrust into the difficult role of deciding cases wrought with emotion in an area of law not always well understood.

The Supreme Court of Virginia was recently faced with such a case in the matter of Colas v. Tyree, 2023 Va. Lexis 4*, Record No. 211226 (Sup. Ct. Va., Jan. 26, 2023).

As often the case, the facts underlying this matter are tragic. On February 9, 2019, Officer Bradley Colas shot and killed Jeffrey Tyree. The Estate of Tyree brought an action for gross negligence and battery. The Estate alleged that police (and specifically Colas) shot Tyree while he was unarmed and lying on the ground. The trial Court denied Colas’ motion to strike, and the jury found Colas

liable and awarded damages to Tyree’s Estate on the battery count only. Colas appealed the matter on the grounds that his Motion to Strike should have been granted because at the time he discharged his weapon, he was acting in defense of another, and thusthe fatal shot was justified. In other words, Colas was asserting he had proved his affirmative defense as a matter of law. The Court found that the Estate’s own un- contradicted evidence established that Colas was justified, and applied the adverse party witness rule in reversing the decision.

Approximately 4-5 days prior to the event, Mr. Tyree began behaving erratically, and his family noticed significant deterioration in his emotional state. According to Tyree’s sister, “[h]e was very angry. He was all over the place with his texts and his conversations…just crazy behavior.” Members of the family tried to talk with Tyree and get him help, but his behavior kept “escalating”. On February 9, 2019, Tyree’s sister went to their mother’s home. When she arrived, Mr. Tyree was sitting outside on a chair. Tyree’s sister described that he was angry, and erratic,

his hair was wild and veins were poking out of his neck.She told him he needed to go to the hospital and get help, or she would call police. In response, Tyree began body bumping and “cussing” his sister.He was hurling expletives and spitting at her. Ms. Tyree, who had never seen her brother act like this, called police after his body bumping forced her to the ground. As Ms. Tyree left, she warned her brother that he would end up in jail if he didn’t get help to which he purportedly responded by stating, “[i]’m not going to jail.I’ll go to the morgue before I go to jail.”

Approximately 10-15 officers arrived. One of the first officers on scene saw Tyree

with a knife and un-holstered his weapon. Tyree advanced toward him and the officer retreated from the yard and began efforts to calm him down. The knife wielded by Tyree was approximately six inches in length and described as a “military-style” knife. Colas was also on scene and had special training as a crisis negotiator. He was asked to act in that role with regard to Tyree. Several officers including, Colas, spoke to Tyree for several hours and tried to convince him to put the weapon down and seek mental health help. At times, Tyree appeared to calm down, but would lapse back into anger. Tyree threatened suicide and purportedly said, “this is only going to end one of two ways. I’m going to slit my throat and you

guys are going to watch me bleed out or I’m going to charge at an officer and force you to shoot me.”

Ultimately, the officers formed a plan to entice Tyree with cigarettes in exchange for putting the knife down. At the decisive moment, the officers would exchange a signal, and one of the officers would fire rubber bullets at Tyree and subdue him. Unfortunately, the plan went awry, and the officer with the rubber bullets attempted to tackle Tyree instead of firing rubber bullets. This resulted in both men lying in the ground next to each other with Tyree in possession of the knife. Tyree lifted the knife into the air and Colas fired a single shot at Tyree (which would prove to be fatal). Colas testified that he fired because he believed his fellow officer was in danger of grave harm and it looked like Tyree was going to stab him. Several officers testified in accordance with this account.

On appeal, the Court noted it was required to view the evidence most favorably to the Estate and grant all reasonable inferences to the prevailing party. “The trial court’s judgment is presumed to be correct, and we will not set it aside unless the judgment is plainly wrong or without evidence to support it.” Xspedius Mgmt. Co. of Va. v. Stephan, 269 Va. 421, 424 (2005). Here, the Court was informed by the “adverse party witness” rule which stands for the proposition that “when an adverse party is called and examined by an opposing party, the latter is bound by all of the former’s testimony that is uncontradicted and not inherently improbable.” Economopoulos v. Kolaitis, 259 Va. 806, 812 (2000).

Colas was called as an adverse witness by the Estate and therefore the Estate is bound by his testimony insofar as it was un-contradicted and not inherently improbable. In reaching a decision, the Court noted several cases in which it reversed jury verdicts on the basis of un- contradicted adverse witness testimony. See, e.g. Beale v. Jones, 210 Va. 519, 522 (1970); Nosay v. Owens, 193 Va. 343, 347-49 (1952). The Court has also applied the adverse party witness rule to

affirmative defenses. See S&W Motor Lines, Inc. v. Bayliss, 212 Va. 124, 124-25 (1971). The Court did not look at Colas’ testimony as it would in an ordinary sufficiency of the evidence case, rather it was required to determine what was un-contradicted v. contradicted (or inherently incredible).

In Virginia, battery is, “an unwanted touching which is neither consented to, excused, nor justified.” Koffman v. Garnett, 265 Va. 12, 16 (2003). Not every touching is a battery and touching is not battery if it is “justified or excused”.

Defense of another is a settled legal principle similar to self-defense. Defense of others is ordinarily a fact question, but undisputed facts may establish this defense as a matter of law. See, e.g. Hines v. Commonwealth, 292 Va. 674, 681 (2016); Hensley v. Commonwealth, 161 Va. 1033, 1036 (1933). Once battery is established, the burden rests with the defendant unless justification is apparent from the plaintiff’s evidence. The jury in the trial court was properly instructed on these issues.

Ultimately, the Court found there was no possible dispute over several key facts:

1) Colas shot and killed Tyree; 2) Tyree was experiencing a protracted mental breakdown and was angry and agitated;

3) Tyree expressed suicidal and homicidal ideation. Furthermore, Colas testimony as an adverse witness was neither incredible nor contradicted. Colas’ testimony was corroborated that at the moment of the fatal shot, Tyree was brandishing a knife capable of serious harm or death to another officer, and it was raised in the air at the time of the shot. Body camera footage confirmed that the events immediately surrounding the fatal shot elapsed in less than two seconds (i.e. the time between Tyree was tackled and when he was shot).

The Court found that in applying the adverse party witness rule, the evidence established Colas faced an immediate and possible mortal danger to a colleague, and was justified in taking a single shot in defense of another. The Estate did not point

to any contrary evidence or testimony. The body camera footage did not contradict the testimony of Colas (or the other officers). In reversing, the Supreme Court noted specifically that this case was not about sufficiency of the evidence, rather it was about application of the longstanding adverse party witness rule, and its application compelled reversal the Court further noted that Tyree’s death constituted irreparable loss to his family and friends, and while both tragic and unfortunate, the evidence and specific facts of this case met Colas’ burden of establishing defense of another as a matter of law.1

Daniel Royce, Esq is Managing Partner, Auto Liability Litigation Group

1 Justices Russell Goodwyn and Mann joined in a dissenting opinion on the grounds that the evidence adduced did not require reversal as a matter of law. These Justices found that in viewing the evidence in the light most favorable to the estate, a rational fact finder could conclude that Colas failed to prove his affirmative defense. As a result, the trial court did not err in denying Colas’ motion to strike. The dissent drew the distinction that evidence was sufficient to allow a juror to reach a conclusion that Colas satisfied his burden, but was not such that it required the jury to reach such a conclusion.

On appeal, the Court noted it was required to view the evidence most favorably to the Estate and grant all reasonable inferences to the prevailing party. “The trial court’s judgment is presumed to be correct, and we will not set it aside unless the judgment is plainly wrong or without evidence to support it.”

NAVIGATING THE “NEW NORMAL” IN WORKERS COMP: RETHINKING WORK AND AUTOMATION

BY REBECCA MORGAN

S EACH YEAR CONCLUDES, WE REFLECT ON THE BIGGEST MOMENTS and accomplishments of the year ending and anticipate what is to come in the year ahead. For 2022, most were relieved that the world seemed to be getting back to a more normal state following disruption from the pandemic, even if it was a “new normal”.

Increase in Resignation Rate by Tenure

Norms in workers’ compensation have changed due to the pandemic. Payers are grappling with what is next after being in emergency mode and asking what lessons have been learned from the pandemic that should be adopted going forward. This includes whether claims for a contagious disease like COVID are work-related. According to a recent article which references legislative analyses by NCCI, in 2020 and 2021, 18 states established COVID-19 presumptions via legislation, directives, emergency rules, and/or executive orders to address how COVID claims are handled in workers’ compensation.

The pandemic also saw many employees changing jobs with a majority shifting to remote work either some or all the time. Prior to 2020 less than 10% of the professional workforce worked from home all or most of the time, and while some experts put remote work at more than 70% during the peak of the pandemic, in 2022 it seemed to normalize around 60% working from home.

With so many employees operating from home, the pandemic also created additional questions

about where the line is between a work environment and a home environment when they are one in the same, and what kind of workers’ comp liability stems from it. These cases bring up discussions surrounding employer liability when an employer isn’t directly controlling the work environment, and states are being forced to address this to mitigate litigation that could spiral out of control, flooding courts with arguments over what is and isn’t compensable when working from home.

The move to remote work also brought unanticipated changes to how employees balance life and work. With shorter commutes and more flexibility, the collective shift has substantially changed how individuals think about wellness, how our teams connect, and how collaborative work gets done. For the most part, business leaders have largely moved on from debating the productivity of remote employees, and instead are concerned with how to cultivate culture and connection, maintain health and wellness, and ensure a positive employee experience in a distributed workforce. Culture and connection may be the impetus for where the work experience is headed next.

WHAT WILL 2023 BRING?

According to a report by Resume Builder, 2023 may be altogether different — again. In their recent study of 1,000 companies, 90% said they will require employees to return to the office at least partially this year. A fifth of them saying they will terminate those who do not. This study also indicates that hybrid work policies will change in 2023. While less than 20% said they will require employees to work in the office full time, 40% said they will require employees to come to the office four days a week. This return to the office could continue to fuel what has been called the Great Resignation.

Much of the Great Resignation pandemic activity seems to be attributed to wage stagnation, cost of living increases, remotework policies, and more, that continue to drive record numbers of employees to leave their jobs. While many believe the trend is mostly attributable to those new in careers, there is also evidence that many tenured employees are following suit. One study, by people analytics company Viser, cited that the greater the tenure the greater the rate of resignation. This trend is

The greater the tenure, the greater the rate of resignation.

concerning on many levels, but mostly related to the loss of knowledge associated with these seasoned employees. Many employers will have to deal with how to effectively train newcomers when those with historical knowledge are departing at higher rates.

However, resignations aren’t the only concern in the greater workforce, as well as specifically the insurance industry, the aging workforce further exacerbates things. For example, the U.S. Bureau of Labor Statistics estimates that 50% of the insurance workforce will retire in the next 15 years leading to more than 400,000 open positions. Th is is increasingly concerning

for the workers’ compensation industry where hiring skilled labor has already been a major issue — especially in terms of finding experienced claim adjusters. Prior to the start of the pandemic, the industry was already experiencing high turnover due to an aging and retiring adjuster population.

These two factors, resignations and retirements, may push insurance organizations to act faster when considering new ways of doing things. This may mean new software and automation strategies, or even outsourcing certain functions that no longer make sense to retain.

CHANGING BUSINESS MODELS ADAPT TO THE “NEW NORMAL”

An example of business transformation can be seen when looking at the claims management process. From the time the individual is injured to their recovery and return-to-work, there are numerous steps in the claims management process ripe for streamlining and improvement. Some of the more obvious tasks are in the end-to-end process from first report of injury through bill payment.

In today’s workers’ compensation environment, regardless of the payer (carrier, Third-Party

Now more than ever, it is important for workers’ compensation leaders to evaluate their program models, not purely from a cost effectiveness strategy, but also as a proactive labor strategy.

NAVIGATING THE “NEW NORMAL” IN WORKERS COMP: RETHINKING WORK AND AUTOMATION

Administrators, public entity, state fund, employer), many variations of operating models exist. Some payers license software to manage state reporting, utilization review, bill review, electronic payments and more, whereas others have elected to outsource these functions to service organizations. Other payers have decided to insource some of the tasks while outsourcing others — typically referred to as a hybrid model. Many of these entities are taking a second look at past decisions to determine what may make sense going forward.

Now more than ever, it is important for workers’ compensation leaders to evaluate their program models, not purely from a cost effectiveness strategy, but also as a proactive labor strategy. If 50% of insurance professionals are due to retire in the next 15 years, it is time to think differently to eliminate risk. Payers who have historically handled the range of services (mentioned above) in-house are considering outsourcing non-core functions to organizations that specialize in those tasks. Others may want to bring or keep functions in house, but need to identify software capabilities with extensive automation built in.

AUTOMATION PAYS OFF

The benefits of automation are undeniable: higher productivity, accuracy, and cost reductions. When it comes to workers’ comp, there are many opportunities to make processes simpler and faster, including straight-through medical bill processing, electronic billing, and electronic payments to name a few. In the case of eBilling, the benefits are not only for the provider, but for the payer as well. If a bill can be received electronically, it eliminates the document intake, processing, data capture, and storage. So, the more you automate, the more efficiencies you can create for staff and reduce expenses.

The financial benefits of electronic payments are even more compelling. Take, for example, medical payments to providers. A paper check costs approximately $8 to $9 on average with a high of $30 per payment. If you establish an electronic payment process, those costs can be reduced substantially. Paper checks are not only expensive, but they are fraught with timeliness and accuracy issues. The efficiency gains from removing the paper, associated with medical payments alone can

help organizations focus on core functions and redirect their attention to recruitment, training, and retention of claims adjusters vs. administrative staff while improving quality. While these are only a few of the examples of ways automation can benefit insurance payers, it serves to highlight some of the opportunities where technology can help with the labor market crunch.

Whether employers plan to pull employees back to the office or continue to support remote work models, simplifying processes and focusing resources on high-value tasks will greatly benefit workers’ comp programs. In addition to streamlining operations, it also is a good strategy to attract and retain employees, not to mention addressing new work environments and the issues they face. The beginning of the year is the perfect time to evaluate the best approach going forward, because it may be much different than what made sense in the past.

Rebecca Morgan is the Vice President of Product Management for Mitchell’s Workers’ Compensation Solutions

The benefits of automation are undeniable: higher productivity, accuracy, and cost reductions. When it comes to workers’ comp, there are many opportunities to make processes simpler and faster, including straightthrough medical bill processing, electronic billing, and electronic payments to name a few.

DON’T FORGET TO RESERVE YOUR ROOM IN THE OFFICIAL PRIMA BLOCK

Rooms are selling out fast, don’t forget to reserve your hotel room today!

WESTIN LONG BEACH

Room Rate: $249+ state and local taxes

RENAISSANCE LONG BEACH

Room Rate: $239 + state and local taxes

STILL NOT REGISTERED?

Reserve your spot: conference.primacentral.org

HYATT REGENCY LONG BEACH

(PRIMA headquarters)

Room Rate: $249 + state and local taxes

Early Bird Rate ends

Monday, April 3

STRAIN AT A GNAT, SWALLOW A CAMEL

While “Saving” Money With Your Worker’s Comp Claims

BY CHERYL TINSLEY, ARM, ABC

I recently had a colleague ask if she could quiz me a bit about worker’s compensation. She began her story with, “my husband was injured recently, and we are very worried....”. She went on to tell me that her husband fell from a ladder at work and sustained a low back injury. He had not worked for over twelve weeks because the treating physician would not allow modified duty, despite both her husband (the injured employee) and his physical therapist recommending modified duty work.

Red flag #1: If the treating physician you or your insurance carrier chooses will not assign modified duty without a clear explanation why, change treating physicians. In states where employers get to choose the treating physician (and this is the case for this person), the only party to take the blame for this IS THE EMPLOYER. The employee is ASKING to come back to work within safe restrictions. His supervisor is on board with this plan.

My friend went onto say that her husband’s employer voluntarily paid money beyond the state’s required temporary total disability (TTD) for four weeks, and then paid the statutory amount. During this time, the injured employee was expected to pay his health insurance premium by check to continue coverage, which he had done. However, once twelve weeks had past (the FMLA magic number....) he had been notified that as of January, his employer would no longer be picking up the employer’s share of the premium, so if he would like to continue his health insurance coverage, he would need to pay the full amount of the premium for his family. This amount is close to three thousand dollars, and this notification was given right before Christmas (after another doctor follow-up appointment where he again was denied modified duty work).

GETS CREDIT FOR THE ABOVE SAYING.

Red flag #2: It is acceptable to run FMLA time concurrent with worker’s compensation benefits. Many employers do this. However, what is the end goal? Is the plan to terminate an employee who is actively treating for a work-related injury? Think through how best to use the protection provided by FMLA in a way that is best for all affected parties. Depending on state law, a wrongful termination lawsuit might come into play. And that, my friends, is quite a bit more expensive to defend than a worker’s compensation claim. I’m not saying don’t use FMLA in worker’s compensation cases; I’m saying think things through so more problems aren’t created than solved.

At this point, the injured employee has even more stress on his injured back, as the full amount of the healthcare premium will eat up a large chunk of his total TTD payments. He is contemplating calling an attorney because he does not know what else to do.

Red flag #3: There are times when having an injured employee represented by counsel is a blessing, depending on the complexity of injuries, etc. However, a litigated claim is always more expensive to the employer than a non-litigated one.

I gave my friend two pieces of advice: 1. Ask the employer to request a nurse case manager. Having a nurse might get the treating physician to budge on the issue of modified duty. Alternatively, the nurse might recommend a second opinion to get things moving (there has been no treatment other than physical therapy for over twelve weeks). 2. I gave her the name of a claimant attorney. I recommended trying option one (nurse case manager) first but absent of some movement at his next doctor›s appointment, obtaining counsel is the next logical option.

Update: I spoke with my friend recently. She said her husband had gone to his employer work comp/ HR person and requested a nurse case manager. The HR person agreed that a nurse was a good idea. He was contacted by a nurse case manager within hours. At his next doctor’s appointment, he was allowed to work modified duty. He is also scheduled for surgery soon since conservative treatment failed. The nurse case manager has gotten the case moving forward, and my friend’s husband was able to get back to work at least for a few weeks, to avoid having to pay 100 percent of his healthcare premiums.

If I had an opportunity to speak with his employer, I would ask who advised them to manage their claims in this manner (cutting off employee medical insurance when FMLA time runs). This employee is not new to his company; he’s worked there for ten years. Here’s my rant: do not tell your employees they are “family” and then do this. Families don’t cut off family member’s health insurance, not to mention during the holidays. Not my family, anyway. This is what my colleagues and I used to call “fighting stupid”.

Update: The fact that the work comp contact person immediately agreed to requesting a nurse case manager tells me that the contact person is wearing too many hats to really monitor the injured employee’s progress and status. He was off work (out of sight, out of mind). Because he asked for some assistance, the case is moving again, and an employee is feeling VALUED. Where the claims adjuster was on this case is another article for another time.

MY GRANDMA

While she didn’t invent it, she certainly knew how to use it appropriately! And how does this apply to saving money with your worker’s compensation claims management plan?

I am SO glad you asked!

Cheryl Tinsley, ARM, ABC is the owner of Tinsley Risk Solutions, LLC

ADVERTISER

HAS YOUR ENTITY LAUNCHED A SUCCESSFUL PROGRAM? An innovative solution to a common problem? A money-saving idea that kept a program under-budget? Each month, Public Risk features articles from practitioners like you. Share your successes with your colleagues by writing for Public Risk magazine! For more information, or to submit an article, contact Jennifer Ackerman at jackerman@primacentral.org.

FIND US ON FACEBOOK!

CALENDAR OF EVENTS

PRIMA’s calendar of events is current at time of publication. For the most up-to-date schedule, visit www. primacentral.org.

PRIMA ANNUAL CONFERENCES

June 4–7, 2023

PRIMA 2023 ANNUAL CONFERENCE Long Beach, California Long Beach Convention Center

June 16–19, 2024

PRIMA 2024 ANNUAL CONFERENCE Nashville, Tennessee Gaylord Opryland Hotel

June 1–4, 2025

PRIMA 2025 ANNUAL CONFERENCE Seattle, WA Washington State Convention Center

Keep up with what’s happening at PRIMA and connect with your risk management peers!

PRIMA WEBINARS

April 19

After Action Reports: What They Are and Why They Are So Important

May 17

Why Comment? You’ve Already Made Up Your Mind: Effective Collaboration and Public Participation

June 28

Life Plan: A Strategy for Achieving and Maintaining Life Balance

July 19

Award-Winning Ideas and Lessons from PRMYs

PRIMA INSTITUTE

October 16–20, 2023 New Orleans

Why Comment? You’ve Already Made Up Your Mind: Effective Collaboration and Public Participation

MAY 17 | 12:00 PM – 1:00 PM ET

SPEAKER:

Amy Livingston, Public & Stakeholder Involvement Discipline Leader, CDM Smith

“Why should I comment? You’ve already made up your mind.” Combat this phrase by closing the public feedback loop before your next engagement. Learn to incorporate public input and demonstrate the value of their insight. Don’t just check the box; increase public understanding of proposed solutions, increase credibility, reduce controversy and foster transparent decision making.

ATTENDEE TAKEAWAYS:

1. Differentiate the types of public input that are useful for your project

2. Formulate ways in which public input may shape the planning process

3. Describe ways to close the feedback loop with the public to build trust

EXPLORE PRIMA23 HOT TOPICS

When Tweets Go Too Far: Public Employees and the First Amendment

Track: GeneralLiability/Auto

Speaker: Liani Reeves, Attorney, Bullard Law

In the recent past, we have seen political engagement on the rise, including an increase in protest and social media activity. This presentation will review public employees’ free speech rights inside and outside of the workplace and the steps government and public employers may take when an employee’s tweet goes too far. It will also review other areas where free speech rights may clash with other rights, such as religious freedom or the right to be free from harassment and discrimination and how to reconcile them.

Armed or Unarmed Educators, the Debate Intensifies

Track: Risk Control

Speakers: Grace Joy, Assistant Vice President, Munich Re America Inc.

Richard Woytus, Vice President, Munich Re

This session is designed to discuss the current environment surrounding school shootings. Risk management is key to preventing the severity of these violent events. We will be going into detail on various risk management strategies. For example, how are states responding to the conversation arming school staff? Will qualified immunity laws change? Are teacher unions on board? Also up for discussion will be the benefits and challenges surrounding this conversation.

When Crisis Hits Your City

Track: Advanced Risk Management

Speakers: Ronni Rausch, Area SVP/GPS Regional Director, Arthur J Gallagher

Louis Barani, Global Terrorism Consultant, American International Group

Sara Lowenthal, Director of Safety and Risk, City of Hartford, CT

During this session, seasoned risk managers will provide insight into handling tragedies that have occurred within their jurisdiction. The presenters will provide extensive knowledge regarding these events and what they have learned from these tragedies, including pre-event preparation to mitigate loss, implementing immediate action and post-loss activities. These events are far too many in number, leaving no public sector entity able to say they are not at risk.

As attendees you will gain industry insight, learn public risk management best practices, and have an opportunity to chat with subject matter experts. Here are a few hot topics you will experience during your time at PRIMA23…